Filed under: Announcements]]>nkwHadi’s Bill-Amendment to Act355 Will Affect Non-Muslimshttps://libertysentinel.wordpress.com/2017/03/08/hadis-bill-amendment-to-act355-will-affect-non-muslims/
Wed, 08 Mar 2017 06:51:45 +0000http://libertysentinel.wordpress.com/?p=1169]]>**Please note that materials from this site will eventually be consolidated and transferred to my more active blog: Krisis and Praxis

KUALA LUMPUR: To find out whether PAS president Abdul Hadi Awang’s private member’s bill affects non-Muslims, just take a look at Kelantan, says a lawyer from the state.

Nik Elin Rashid said events showed that shariah laws were being imposed on non-Muslim citizens in the PAS-led state. For example, she said a non-Muslim owner of a watch shop had been fined for displaying a poster of Bollywood actress Aishwarya Rai with her hair uncovered.
In the past, when cinemas were allowed in Kelantan, she said the movies screened only showed actresses with covered hair.
Nik Elin said the PAS government in Kelantan did not take steps to ensure shariah laws applied only to Muslims.

“Instead, they set the laws through the city councils which then implemented the policies, such as that anyone who wants to work in a supermarket must cover her hair,” Nik Elin said at a forum on a public action plan against the amendments to Act 355, in Brickfields here last night….

Bebas spokesman Azrul Mohd Khalib, who was present, said because the amended laws for Muslims would be disproportionately harsher, they would eventually be imposed on non-Muslims as well. “You’re going to hear people say it’s not fair, we want things equal as is stipulated under the Federal Constitution.”

Filed under: Human Rights Fundamental Liberties, Legal Issues, Religious Liberty, Shariah]]>nkwMCCBCHST OPEN LETTER TO MPs TO VOTE AGAINST HADI’S HUDUD BILLhttps://libertysentinel.wordpress.com/2017/02/24/mccbchst-open-letter-to-mps-to-vote-against-hadis-hudud-bill/
Fri, 24 Feb 2017 04:11:16 +0000http://libertysentinel.wordpress.com/?p=1151]]>“The Malaysian Counsultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taosim (MCCBCHST) is gravely concerned with Hadi’s Private Members Bill which will be coming up for debate soon in our Federal Parliament. As the Bill will have far –reaching consequences for the Nation, the MCCBCHST feels duty bound to issue this open letter to Members of Parliament to do their duty as required by their oath of office to protect our Federal Constitution.”

UMNO will be lending a helping hand to PAS to push a Bill through Parliament which would amend the Shariah Courts (Criminal Jurisdiction) Act 1965, also known as Act 355. The amendments would extend power to the Islamic courts to enforce heavier punishment for Islamic offences. PAS President Abdul Hadi Awang and UMNO leaders assure non-Muslims that the proposed amendments will not affect non-Muslims. Re: Hadi to Make More Amendments to Shariah Bill] [FMT 23 Nov 2016]

Non-Muslims are naturally skeptical towards the assurances from PAS and UMNO. Both the local and international media have sounded the alarm that the amendments would encourage further imposition of Islamic regulations onto non-Muslims.

The reality is that the Civil services and shariah authorities have periodically taken the liberty to impose Islamic scruples and regulations onto non-Muslims, even though they are technically not empowered to do so. Having been victimized by ‘over-zealous’ officials from both the Civil services and shariah authorities (who are never taken to task for their abuse of power), non-Muslims can only regard the assurance from Hadi and UMNO leaders to be both hollow and disingenuous.

It seems to be the case that Civil and Shariah authorities have no respect for the privacy and private morality of non-Muslims when they violate their Constitutional rights. We fear that such violations will become increasingly blatant should Parliament pass the Bill to enhance the scope and power of the Shariah Courts.

To repeat, the assurance from Hadi Awang and UMNO leaders can only be seen to be disingenuous.

KUALA LUMPUR, Feb 9 ? Swine products are only “haram”, or forbidden, when ingested, according to all Muslim schools of jurisprudence except for the Shafie school widely practised in Malaysia, independent preacher Wan Ji Wan Hussin said today.

The PKR Islamic Council leader said “archaic jurisprudence” has resulted in the sensitivity regarding the issue, and that it would never have happened if there was more openness in interpreting Islamic laws.

“All school of jurisprudence except Shafie states that pigs are only haram when eaten. When touched, not haram,” Wan Ji said in a public post on his Facebook profile.

“This thing became sensitive, only because of the archaicness of jurisprudence. Therefore, the issue of swine leather shoes is not an issue in societies with jurisprudence openness. The ones where it is sensitive, is with societies that are archaic in jurisprudence.”

Muslims are strictly forbidden from eating pork and products derived from pork, with the origin coming from a Quranic verse 2:173 which prohibits “dead animals, blood, the flesh of swine, and that which has been dedicated to other than Allah”.

The same verse states that there is no sin for those who do so when forced by necessity.

In Malaysia, only the Sunni denomination of Islam and its Shafie school of jurisprudence are considered official.

Wan Ji, however, contended that despite the claim that Malaysia follows the Shafie school, it does not follow that school in other matters, such as the issue of zakat, or alms, where the Shafie school specifies that it is invalid to use cash for alms.

For example, the Shafie school specifies that the “zakat fitrah” paid during the holy Ramadan month, should be made in the form of staple food within the specific community.

The national fatwa council has since decreed in 2003 that the payment can be made with cash equivalent to a specified value of local rice.

“My reminder is for Malaysia to not play sentiments on these issues. Instead, they have to educate the society on the openness, not the archaicness, of jurisprudence,” said Wan Ji.

“Parties who brought this issue up, I remind them that their actions will cause non-Muslims to hate Islam, they will be cynical towards Islam.”

He reportedly said the brushes were confiscated under the Trade Descriptions (Goods Made from any Part of Pig or Dog) Order 2013, which states that such products must be labelled and separated from other goods.

Punishments for violations of the minister’s order are RM100,000 fines, three years’ jail or both for individuals, while corporations face fines of up to RM250,000.

Subsequently, Muslim Consumer Association of Malaysia (PPIM) called for a logo to differentiate items containing pig-derived parts to inform the “not that smart” Muslim consumers.

OCTOBER 15 — The Malaysian Counsultative Council of Buddhism, Christianity, Hindusim, Sikhism and Taosim (MCCBCHST) is gravely concerned with Hadi’s Private Members Bill which will be coming up for debate soon in our Federal Parliament. As the Bill will have far-reaching consequences for the Nation, the MCCBCHST feels duty-bound to issue this open letter to Members of Parliament to do their duty as required by their oath of office to protect our Federal Consitution.

I Is Hadi’s Private Member’s Bill a Bill empowering HUDUD offences?

The answer is a clear ‘YES’. Here is why

The aim of Hadi’s Private Member’s Bill is to seek Parliament’s approval to enhance the Jurisdiction of the Syariah Courts. Presently the Syariah Courts can only impose punishments up to 3 years imprisonment, fine up to RM5,000.00 and whipping up to 6 lashes (commonly known as 3-5-6 limits). This is provided for by the Syariah Court (Criminal Jurisdiction) Act 1965 (Act 355).

The proposed new Section 2A is very wide and states that Syariah Courts can impose punishments which are allowed by Syariah Law in relation to punishments which are listed under the above Section, other than the death penalty.

Now, let us look at the Syariah Law Enactment passed by the State Legislature of Kelantan, known as the “Kelantan Syariah Criminal Code 11 (1993) 2015”. The offences included in this Kelantan Enactment are:

Thus, the proposed Hadi’s Private Members Bill is clearly a HUDUD BILL as it seeks to empower States to be able to introduce amendments empowering Syariah Courts to impose Hudud Punishments.

II. MCCBCHST since its formation has always supported:

(i) The Federal Constitution

(ii) Rukunegara

(iii) Islam as the religion of the Federation

(iv) Loyalty to King and Country

(v) Rule of Law

III. Is Hadi’s proposed Bill constitutional.

The MCCBCHST is of the view, that it is clearly unconstitutional. These are the reasons why it is so.

(1) The Historical documents and evidence point to Malaysia being a Secular State.

(i) The Alliance Memorandum submitted jointly by Umno, MCA, MIC to the Lord Reid Commission in 1956 specifically stated that they wanted a secular state, although the religion of the State was to be Islam, and we quote:

“The Religion of Malaya shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practicing their own religion, and shall not imply that the State is not a secular state”.

(ii) Lord Reid Commission report recommended that although Islam was to be the State religion, it did not imply that the State is not a secular State (Para 169 of Reid Report).

(iii) The White Paper issued by the British Government in June 1957 reconfirmed that the inclusion of the declaration that Islam is the religion of the Federation, “will in no way affect the present position of the Federation as a secular state” (Paragraph 57 of the White Paper).

“changed their tune about Islam and the Government presented a united front in favour of making Islam a state religion even though Malaya is to be a secular state”.

(v) The Cobbold Commission report 1963 again reiterated the secular nature of the New Federation comprising Malaya, Sabah, Sarawak and Singapore.

(vi) The 20 points consensus Agreement for Sabah and the 18 points consensus Agreement for Sarawak. The 1st point of agreement was that there would be no State religion for Sabah and Sarawak.

(viii) Tunku Abdul Rahman who was deeply involved in the drafting of the constitution and attainment of Independence for Malaya on 31st August, 1957 had clearly stated on a number of occasions that Malaysia was a secular state and not an Islamic state, including:-

During debate in the Federal Legislative Council in 1958 “I would like to make it clear that this country is not an Islamic state as it is generally understood, we merely provide that Islam is the official religion of the State”.

Our First Prime Minister and founding father Tunku Abdul Rahman stated clearly that Malaysia was set up as a secular state with Islam as the official religion” — The Star (9/2/1983) under heading “Don’t make Malaysia an Islamic State”)

(ix) There appears to be no Historical document to contradict the fact that Malaysia was intended to be a secular state.

(2) The Hadi Bill seeks to empower States to be able to impose Hudud sentences. This proposed Hudud offences are already offences under the Federal Penal Code. Federal List comes under Parliament and States cannot legislate on it. The Hudud offences thus seek to encroach into the Federasl List and seek to create a dual legal system, which is not allowed by the constitution, as it will undermine the basic structure of the constitution.

Article 160(2) of the Federal Constitution defines “Law” as :-

“Law includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof”.

Thus, Syariah Law (of which HUDUD offences is part), is not even included in the definition of “Law under our Federal Constitution.

Thus the introduction of Hudud offences, will affect the very fabric of the Federal Constitution, as basically we are governed by secular laws.

(3) Religion of the Federation

Article 3(1) explained:

It provides:

“Islam is the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation.

The Supreme Court in the case of Che Omar Bin Che Soh v. PP (1988) 2 MLJ. 55 after going through the History of the Formation of Malaysia held that the Federation is governed by secular Laws.

Prof. Shad Faruqi in his book “Document of Destiny” at page 123 stated:

“The word ‘secular’ does not appear anywhere in the constitution. However, there is historical evidence in the Reid commission papers that the country was meant to be secular and the intention in making Islam the official religion of the Federal was primarily for ceremonial purposes.”

Article 3(4) explained:

It provides:

“Nothing in this Article derogates from any other provision of this constitution”.

This Article 3(4) in the controlling Section of Article 3 and is very often overlooked in discussions.

The effect of Article 3(4) is that “no right or prohibition, no law or institution is extinguished or abolished as a result of Article 3’s adoption of Islam as the religion of the Federation”. Shad Faruqi — Page 126 “Document of Destiny”

This further means that Article 3 cannot be used to affect or abridge any other provision of the constitution.

(4) Islamic Law is confined to what is provided for in the State List II (9th Schedule), with the limitations imposed therein.

The present limitations are imposed by Act 355 commonly known as 3-5-6 limit).

In fact words “Islamic law” or “Syariah Courts” were not found or included in Schedule 9 List II in the 1957 Federal Constitution. This meant that Syariah Law or HUDUD offences were never in contemplation of the framers of the constitution.

The Schedule 9 List II was amended in August, 1976 to rename “Muslim Courts” as “Syariah Courts” and “Muslim Law as “Islamic Law”.

(5) Article 4(1) provides that :

“This constitution is the Supreme Law of the Federation.”

This means, all other laws are inferior and they must conform to the constitution, failing which they will be declared unconstitutional.

Thus, Syarial Laws and other laws are subject to this constitution.

It also means that this constitution is supreme and not Parliament. Therefore any Law passed by Parliament that contravenes our Federal Constitution, can be declared null and void by our Courts.

In the Indian Supreme Court case of Kesavananda Bharati v. the State of Kerala, the Court held that in any Country where the constitution is supreme, there must be an implied restriction of the power of Parliament to change the basic structure of the Constitution. This case has been accepted by our Malaysian Courts and the basic structure doctrine being endorsed.

(6) Higher status of secular authorities.

“If by a theocratic State is meant a State in which the temporal ruler is subjected To the final direction of the theological head and in which the law of God is the Supreme Law of the land, then clearly Malaysia is nowhere near theocratic, Islamic state. Syariah authorities are appointed by State Government and can be dismissed by them. Temporal authorities are higher than religious authorities”. Prof. Shad Faruqi in “Document of Destiny”, Page 126.

IV. Would Hadi’s Bill infringe Non-Muslim Rights? Our YAB. Prime Minister is reported to have said: “I would like to clarify that the amendment (bill) is not hudud law. It also involves the Syariah Courts and only involves Muslims. It has nothing to do with Non-Muslims”. [Malaysiakini — 28/5/2016 extract from article by Wong Chin Huat]

The YAB Prime Minister is entitled to his opinion, but we beg to defer.

The following personalities are also not convinced and believe that Hadi’s Bill will lead to Hudud:

a. 4 cabinet Ministers had threathened to resign if Hadi’s Bill is passed

b. Sarawak Government had made its stand clear that it rejects Hadi’s Bill

i. “No need to discuss something that will not happen. It’s stupid for anyone to even be discussing Hudud” — Datuk Seri Nazri Aziz.

These are the reasons why, Hadi’s Bill, if passed will have serious consequences to the Nation and to the Non-Muslim position:

(i) The Kelantan Syariah Enactment Bill passed in 1995 as amended had by Section 56(2) of the Enactment given option to Non-Muslims to come under its Jurisdiction.

This option is clear violation of the Constitution, which has declared in List II Schedule 9 that Syariah Courts have jurisdiction only on Muslims.

(ii) A paper prepared by the Jakim Syariah Civil Technical Committee dated May 8, 2014 had proposed Hudud to be implemented in 2 stages, the first involving amendments to Federal and State Laws.

In the second stage it will include education and promotion of the Hudud implementation and would then apply to Non-Muslims [See Malaysia today “Hudud should apply to all Malaysians — Jakim paper suggests dated 6/9/2014].

Hadi’s Bill, thus appears to be the first stage.

(iii) Hadi’s Bill is indeed empowerment of Hudud offences.

The aim of the Bill is to empower States like Kelantan to be able to impose Hudud punishments. Thus it is clearly a Hudud offences Bill

(iv) Innocent packaging of Hadi’s Bill

The authorities and those supporting Hadi’s Bill now refer to it as “Act 355”. By this they appear to be hoping to Lull people into believing that they are just enhancing powers of Syariah Coruts, e.g. from 6 to 100 lashes and no Hudud offences are involved.

(v) Hudud offences would undermine the Non-Muslim rights as follows:

(a) Under an Islamic theocracy, God’s law is supreme. This position would undermine the fundamental rights guaranteed to citizens.

(b) A Non-Muslim cannot be a witness under Syariah Law. In most Hudud offences the victim must produce four (4) male Muslim persons of good character to give evidence on his or her behalf.

Thus the non-Muslim victim must rely on the Muslim witnesses although there may be scores of Non-Muslim witnesses available.

(c) In our multi-cultural country people of different faiths live side by side. When crime is committed involving Muslims and Non-Muslims which Court would have jurisdiction.

(d) In rape cases, the burden is on the rape victim (women) to produce 4 adult male Muslim witnesses which in most cases would be impossible.

The experience of other Hudud Countries show that such perpetrators go free while the victim can be punished for ‘zina’.

(e) Kelantan Syariah Criminal Enacment 1993 (2015) seems to recognise fact that crime may be committed against non-Muslims by Muslims or vice versa when it provides in Section 56(2) that a Non-Muslim can elect to come under the Syariah Enactment. This “choice” given by the Enactment is unconstitutional as jurisdiction is given by law.

[NOTE: We understand that this section 56(2) may be removed now. But there is nothing to stop them from introducing again on the Pretext to allow non-Muslim victims to obtain justice in Syariah Courts].

(vi) Members of Parliament Oath of office.

The Members of Parliament upon being elected have to swear an oath to protect the Federal Constitution.

It has been shown above that the 1957 constitution was a product of consensus reached between the communities. All documents, as shown above, re-iterate Malaysia as a secular State.

It has been shown above that the Hadi’s Bill has the potential to affect the basic fibre and structure of the constitution. It will also create a dual legal system.

Sabah & Sarawak Position

When Sabah and Sarawak together with Singapore and Malaya formed Malaysia; Sabah and Sarawak were guaranteed the 20 and 18 points in the Agreement.

The 1st point of the Agreement stated that there shall be no State religion for Sabah and Sarawak.

Thus, the Hudud introduction will undermine Sabah and Sarawak’s rights for joining Malaysia.

Oath of Office.

Therefore the Members of Parliament must attend Parliament sittings diligently and be guided by their oath of office into rejecting the Hudud Bill.

One Minister had stated that she would not support Hudud Bill and will also not attend Parliament.

Non-attending is not an option. It will be a serious mistake not to attend Parliament sitting. For if Hudud offences Bill is passed, it will affect all. One’s Non-attendance will not be a defence. All must attend and help to defeat Hadi’s Private Members Bill.

MCCBCHST call upon all Members of Parliament to attend Parliament and Help defend the Constitution by vigourously opposing Hadi’s Bill and voting against it. This is what the Nation Expects of You.* * The joint letter was signed by the Ven. Dato’ Seri Jit Heng, (President), Datuk R.S. Mohan Shan, (Deputy President) , Bishop Sebastian Francis, (Vice-President), Sardar Jagir Singh, (Vice-President), Daozhang Tan Hoe Chieow, (Vice-President), and Prematilaka Serisena, (Hon. Secretary General) of MCCBCHST.

Filed under: Islamization, Legal Issues, Press Statements, Religious Liberty, Shariah]]>https://libertysentinel.wordpress.com/2016/10/18/interfaith-council-urges-mps-to-vote-against-hadis-upgrade-shariah-courts-bill/feed/1nkwBe Assured that Syariah Law WILL be Imposed on non-Muslimshttps://libertysentinel.wordpress.com/2016/08/10/be-assured-that-syariah-law-will-be-imposed-on-non-muslims/
https://libertysentinel.wordpress.com/2016/08/10/be-assured-that-syariah-law-will-be-imposed-on-non-muslims/#commentsWed, 10 Aug 2016 03:26:35 +0000http://libertysentinel.wordpress.com/?p=1119]]>PAS politicians and some UMNO government officials repeatedly assure non-Muslims that that Syariah law will not be applied to them even as Abdul Hadi Awang tables the Syariah Courts (Criminal Jurisdiction) (Amendment) Bill 2016 to widen the scope of the criminal jurisdiction of Syariah Courts. However, non-Muslims have reasons to doubt whether the assurance is empty, if not disingenuous, when the authorities in Kelantan and officials in various government departments repeatedly impose public policies that infringe on the fundamental liberties of non-Muslims. It is the duty of every conscientious Member of Parliament to reject any proposed legislation that violates the provisions in the Federal Constitution that protect the rights of non-Muslims and Muslims against punitive criminal actions based on religious precepts.

Beware when the wolf ‘courteously’ invites the lamb for supper in his den when it is seen sharpening its claws and teeth.

KOTA BARU (THE STAR/ASIA NEWS NETWORK) – A second business operator has been slapped with a summons for putting up posters that do not adhere to the Islamic dress code.
This time, it is a businesswoman selling skincare products at Aeon Mall in Kota Bahru.
She told China Press online that she was issued a RM150 (S$50) summons from the Kota Baru Municipal Council (MPKB) on July 26 for posters that featured a woman who was not wearing a tudung (headscarf).
“The enforcement officers just came in and gave me the summon without any warning,” she complained, adding that the posters were eventually removed.

On July 25, a watch retailer in the same mall was also fined for displaying two “sexy” posters, supplied by the brand manufacturers, in his shop.

The posters of Aishwarya Rai (above ) and the models are deemed sexy in the MPKB summons.
One poster featured Bollywood star Aishwarya Rai and another showed a female model wearing a strapless dress, with her arms interlocked with a man.

MPKB president Zamri Ismail has defended the council’s move in issuing the summonses.
He earlier told Sin Chew Daily that outfits which did not abide by the Islamic dress code were deemed “indecent” and that the council did not allow the display of posters with sexy models at public areas.
According to the council’s terms of business permits, owners are not allowed to display sexy photographs at their shops.

Hair salon operators here are fuming following verbal warnings from the Kota Baru Municipal Council to remove posters featuring models who did not cover their heads (tutup aurat).
One salon operator, who only wanted to be known as Ong, said they had been told by enforcement officers that the posters placed in front of their salons were deemed “too sexy”.
According to China Press, the officers took photographs of the salons before they left. It also quoted a salon operator as saying that he had been told that the posters should not be placed on the glass window or doors facing the road.

UNDER the Syariah Courts (Criminal Jurisdiction) Act 1965, the sentencing power of the syariah courts is limited to RM5,000 fine, six lashes and three years’ jail. This power is equivalent to the power of magistrates in our civil courts.

It is understandable therefore that PAS President Datuk Seri Abdul Hadi Awang wishes for a law to enhance the status of syariah courts by increasing the penalties they can impose. However, the Private Member’s Bill he is promoting has more to it than catches the eye.

It re-ignites some critical issues of constitutional law, Islam and justice.

Criminalisation: Under the Constitution’s Schedule 9, List II item 1, state assemblies have power to enact Islamic law on 24 civil matters (like succession, marriage, divorce and Malay custom) and on one criminal matter, that is, “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion”.

The power to impose criminal penalties appears to be confined to offences against the precepts of Islam. But under the “Hadi Bill” the criminal jurisdiction of the syariah courts is not limited to the violation of the teachings of Islam but can extend to “offences relating to any (of the 25) matters enumerated in item 1 of the State List”.

This appears to be a significant enhancement of power. Many matters like Malay custom which are not criminalised now, could possibly be criminalised in the future!

Federal-state division: Another issue is the demarcation of penal power between the Federal and state legislatures as outlined in Schedule 9, Lists I and II. States have legislative authority to create and punish offences against the precepts of Islam.

But in Schedule 9, List II, item 1 and List I, Item 4(h) this penal power of the states is limited by the words “except in regard to matters included in the Federal List” or “dealt with by Federal law”. Among the matters included in the Federal List are “criminal law and procedure”.

Most criminal offences like murder, theft, robbery, rape, incest, unnatural sex, betting and lotteries are in Federal jurisdiction even though they are also offences in Islamic jurisprudence.

Murder is covered by sections 300, 302 and 307 of the Penal Code. Theft is dealt with by sections 378 – 382A; robbery by sections 390 to 402; and rape in section 375 – 376.

Incest and homosexuality are covered by sections 377A to 377C. State Enactments on these Federal matters are ultra vires (beyond the powers of the states).

The Merdeka Constitution’s scheme was that the states are permitted to punish wrongs like khalwat, zina, intoxication and abuse of halal signs as these are not covered by Federal laws.

Unfortunately, most states are trespassing on Federal jurisdiction by punishing crimes like homosexuality, incest, prostitution, enticing a married woman, betting, lottery and gaming even though these wrongs are clearly part of the Federal Penal Code.

States are also setting up rehabilitation centres even though this power is solely Federal.

Regrettably, such ultra vires state laws are hardly challenged in the courts. In the rare application for judicial review, the superior civil courts are generally reluctant to invalidate laws passed in the name of the syariah.

The Hadi Bill must be seen in this light: it is enhancing penalties for crimes, some of which are far beyond the powers of the states.

Another unresolved issue is that state laws often criminalise acts that are sins, not crimes in Islamic theory. For example, Islam does not mandate criminal sanctions against those who skip Friday prayers or who in honest disagreement, question the desirability of a fatwa (juristic opinion).

Hudud punishments: Under the Bill, what penalties can the syariah courts impose? Specifically, can states impose “hudud punishments” prescribed in classical Islamic law?

The Bill is clear that syariah courts cannot impose the death penalty. Therefore, the non-Quranic penalty of stoning to death is impermissible.

But as the Bill permits “any sentence allowed by Islamic law” (without mentioning these sentences), there is a real possibility in the future of amputations, crucifixions, whipping up to 100 lashes, forfeiture of property, and imprisonment for unspecified periods till the accused repents.

No uniformity: In criminal law there should be uniform application of the state’s coercive powers against delinquents. In the Hadi Bill there is no emphasis on uniformity from state to state. Each state can pick and choose which penalties to impose.

This is a regression from the present position that only three types of penalties (lashes, fine and imprisonment) with strict upper limits can be prescribed in all states.

Kelantan Code: Due to the provision for “any sentence allowed by Islamic law” the Hadi Bill is clearly an adroit attempt to revive the Kelantan Syariah Criminal Code II (1993) which has been lying dormant because of constitutional hurdles.

It is noteworthy that the Kelantan Code of 1993 extends to consenting non-Muslims. This is a serious violation of the Constitution which proclaims that syariah courts have no jurisdiction over non-Muslims.

Jurisdiction is a matter of law, not of consent or acquiescence.

Fundamental rights: As our Constitution is supreme, all Federal and state legislation is subject to judicial review on constitutional grounds. Even if the Hadi Bill crosses the parliamentary threshold, if its content or its consequences are violative of fundamental liberties, judicial review is a distinct possibility.

Thus if two criminals in Kelantan, one a Muslim and the other not, are caught for stealing, the non-Muslim will be tried under the Penal Code.

The Muslim will face the music in the syariah court and may be liable to amputation. Unequal punishments for the same crime would violate the equality provision of Article 8 of the Constitution.

In sum, even if the Bill to amend the 1965 Syariah Court (Criminal Jurisdiction) Act secures a simple majority in Parliament, a Pandora’s box of questions and issues will continue to haunt the legal system.

We can only hope that before the Bill is passed there will be a thorough inquest in our Parliament of the constitutional implications of the Bill.

Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.

The Malaysian Bar is alarmed by the proposed National Security Council Bill 2015 (“the Bill”) that was tabled in the Dewan Rakyat on 1 December 2015 by Minister in the Prime Minister’s Department Dato’ Seri Shahidan Kassim, and which is reportedly scheduled for its second reading today. The basis for this new law is unclear, and the manner in which it is being rushed through the Dewan Rakyat is inexcusable.

The Bill is an insidious piece of legislation that confers and concentrates vast executive powers in a newly created statutory body called the National Security Council (“NSC”).

The NSC consists of key members of the executive, namely the Prime Minister as Chairman and the Deputy Prime Minister as Deputy Chairman, as well as the Minister of Defence, Minister of Home Affairs, Minister of Communication and Multimedia, Chief Secretary to the Government, Chief of Defence Forces, and the Inspector General of Police (see Clause 6). It is noteworthy that the members of the NSC are all appointed by the Prime Minister and report directly to him. Accordingly, the NSC is not an independent body, and would essentially function at the dictates of the Prime Minister.

The NSC is to be “the Government’s central authority for considering matters concerning national security” (see Clause 3). The NSC’s scope of authority is broad and unchecked, as “national security” is not defined in the Bill. This provision is therefore open to abuse by the NSC, as the NSC would be able to treat almost any matter as one of national security for the purposes of the Bill.

The NSC will have the power to “control” and “issue directives” to “any ministry, department, office, agency, authority, commission, committee, board or council of the Federal Government, or of any of the State Governments, established under any written law or otherwise” on operations or matters concerning national security (see Clauses 2 and 5). Thus, a whole host of instrumentalities of the Federal Government or State Governments — which could include Bank Negara Malaysia, Securities Commission and the Malaysian Anti-Corruption Commission — would be made subservient to the NSC. The independence of these entities would be restrained and compromised. The authority of State Governments can be overridden.

Critically, the NSC is empowered to advise the Prime Minister to declare any area in Malaysia as a “security area” if the NSC is of the view that the security in that area is “seriously disturbed or threatened by any person, matter or thing which causes or is likely to cause serious harm to the people, or serious harm to the territories, economy, national key infrastructure of Malaysia or any other interest in Malaysia, and requires immediate national response” (see Clause 18(1)). The provision gives the NSC (and in effect the Prime Minister) extremely broad discretion to declare an area as a security area given the variety of circumstances, which may not be genuine national security concerns at all, such as peaceful public rallies or protests.

Upon the NSC’s advice, the Prime Minister may, “if he considers it to be necessary in the interest of national security, declare in writing the area as a security area” (see Clause 18(1)). The declaration is for an initial six months and “may be renewed by the Prime Minister from time to time for such period, not exceeding six months at a time” (see Clauses 18(3) and 18(4)). The unbridled power in the hands of the Prime Minister allows him to declare almost any part of Malaysia as a security area. Further, the Prime Minister may extend the period of such declaration for an unlimited number of times and therefore, for an indeterminate duration that could extend for years. The immortal words of the late Raja Azlan Shah (acting Chief Justice of Malaya, as he then was) in the case of Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, must be borne in mind and never forgotten: “Unfettered discretion is a contradiction in terms … Every legal power must have legal limits, otherwise there is dictatorship…”

Upon a declaration that an area is a “security area”, the NSC would have wide-ranging executive powers. It may issue executive orders that would include the deployment of security forces (such as the police and the armed forces) in the security area (see Clause 19(2)), and may appoint a Director of Operations answerable only to the NSC (see Clause 20). The Bill does not provide for the qualifications of the Director of Operations, who has enormous and unrestricted powers, such as the power to remove any person from the security area, impose curfew, and control movement of persons or vehicles (see Clauses 22(2), 23 and 24).

As regards the deployed security forces, they “may, without warrant, arrest any person found committing, alleged to have committed or reasonably suspected of having committed any offence under any written laws in the security area”. The security forces also have powers to stop and search individuals; enter and search any premises; and take possession of any land, building or movable property (such as cars) in a security area (see Clauses 25 to 30).

Thus, all constitutional guarantees and fundamental rights of citizens in respect of arrest, search and seizure of property can be ignored or suspended. This is a grave infringement of the Federal Constitution.

Further, there is power to dispense with inquests in respect of members of the security forces and persons killed within the security area, as long as a Magistrate “is satisfied that the person has been killed in the security area as a result of operations undertaken by the [s]ecurity [f]orces for the purpose of enforcing any written laws” (see Clause 35). “Written laws” are not defined, and could well include laws in respect of minor offences. Thus, this provision permits security forces to use disproportionate force that could result in the loss of lives, with impunity.

It would appear therefore that the Bill enables the Prime Minister, either unilaterally or through the NSC, to exercise authoritarian executive powers. These powers are in effect emergency powers, but without the need for a proclamation of an emergency under Article 150 of the Federal Constitution. This usurps the powers vested in the Yang di-Pertuan Agong in, and violates the provisions of, Article 150 of the Federal Constitution, and is a blatant appropriation of those powers. The Bill is therefore of questionable constitutional validity. Moreover, the extensive powers under the Bill effectively resurrect the powers granted to the Government under the Emergency Ordinances, which were repealed by Parliament in 2011.

The Government will no doubt argue that we live in dangerous times, with the constant threat of terrorism, and that such new powers are necessary to combat such threats. However, we would remind the Government that it has more than enough laws giving it more than enough draconian powers to address security concerns. The proposed legislation extends those draconian powers even further, allowing the Government to restrict movement, abandon civil liberties, and administer areas centrally and directly, bypassing state and local government. It avoids public scrutiny and proper accountability, and promotes unfettered discretion and an environment of impunity.

The Malaysian Bar urges the Government to immediately withdraw the National Security Council Bill 2015, and to step back from the abyss of authoritarian rule by respecting the rule of law and our Federal Constitution.

The Malaysian Bar, the Advocates’ Association of Sarawak and the Sabah Law Association are seriously concerned with the National Security Council Bill 2015 (“the Bill”) that was passed by the Dewan Rakyat on 1 December 2015 and the Dewan Negara on 22 December 2015.

2. It is worrying that this far-reaching piece of legislation has been hastily dealt with by Parliament despite widespread concerns expressed by various parties. The Government’s refusal to engage meaningfully with critics of the Bill and to properly respond to the mounting criticism of it are regrettable.

3. Further, we are disconcerted that the Government has failed to fully explain the reasons for the Bill. There have been some references to the Lahad Datu incident and the creation of Eastern Sabah Security Command. However, these references are questionable because firstly, the Lahad Datu incident took place more than two years ago. Thus, there was no reason for the sudden rush for this Bill in the past month. Secondly, Article 150 of the Federal Constitution provides for the proclamation of an emergency, which would provide sufficient powers to address any future incidents of territorial incursion, like that of Lahad Datu.

4. We wish to briefly highlight some of our serious concerns on the Bill, as follows:

(a) There is an absence of any reference to relevant provisions of the Federal Constitution such as Article 149 (Legislation against subversion, organized violence, and acts and crimes prejudicial to the public) or Article 150 (Emergency Powers) of the Federal Constitution in the preamble to the Bill despite the wide powers on matters concerning national security and, further, the provisions for the exercise of emergency-like powers;

(b) The Bill creates a new statutory entity called the National Security Council (“NSC”). It is clear that the NSC is markedly different — in its composition, scope of function and responsibilities — from the existing administrative body also known as the National Security Council. There has been no explanation as to why the NSC has been established as a statutory body by the Bill and clothed with the wide powers under the Bill;

(c) The NSC is to be “the Government’s central authority for considering matters concerning national security” (see Clause 3). Thus, this suggests that NSC will have executive power on national security matters and will have the final say on this critical matter;

(d) The NSC’s scope of authority on matters concerning national security is unduly broad, as “national security” is not defined in the Bill. The NSC would be able to treat almost any matter as one of national security for the purposes of the Bill. There are no checks and balances to this seemingly unbridled executive power in the hands of the NSC;

(e) The functions of the NSC include “to perform any other functions relating to national security for the proper implementation of this Act” (see Clause 4(d)). The NSC will also have the power to “control” and “issue directives” to “any ministry, department, office, agency, authority, commission, committee, board or council of the Federal Government, or of any of the State Governments, established under any written law or otherwise” on operations or matters concerning national security (see Clauses 2 and 5). Thus, a whole host of instrumentalities of the Federal Government or State Governments — which could include Bank Negara Malaysia, Securities Commission and the Malaysian Anti-Corruption Commission — would be made subservient to the NSC. The independence of these entities could be irreversibly compromised or undermined. Further, the authority of State Governments can be overridden;

(f) It is of critical importance to note that the extensive powers of the NSC over instrumentalities of the Federal Government or State Governments (in Clause 5) is exercisable without a declaration of a “security area” (in Clause 18). This appears to be an unprecedented conferment of executive powers on a statutory body by Parliament, and these enormous powers are available to the NSC even where the conditions for the declaration of a security area (as stated in Clause 18) are not met. In short, the NSC’s powers under Clause 5 are akin to emergency powers, but exercisable without a declaration of emergency under Article 150 by the Yang di-Pertuan Agong;

(g) The Bill enables the NSC to command the armed forces (see Clause 5 and 19), thus violating Article 41 of the Federal Constitution, which states that the Yang di-Pertuan Agong is the supreme commander of the armed forces of the Federation. The Bill further infringes Article 137(1) of the Federal Constitution, which states that it is the Yang di-Pertuan Agong who shall be responsible for the command, discipline and administration of, and all other matters relating to, the armed forces. In addition, Section 168(3) of the Armed Forces Act 1972 states that no power vested in the Yang di-Pertuan Agong may be affected by any written law;

(h) The composition of the NSC is troubling, as all the members are appointed by the Prime Minister, and the NSC will therefore not be an independent body. The Director General of the NSC is also to be appointed by the Prime Minister (see Clause 15). In contrast, the equivalent NSC in France — i.e. the Council of Defense and National Security — includes the head of state (i.e. the President) in its composition, which provides a measure of check and balance;

(i) It is further troubling that the NSC is empowered to demand that all government entities shall transmit national security-related information or intelligence to it immediately, making the NSC the sole intelligence coordinating agency of the country (see Clause 17);

(j) The NSC is empowered to advise the Prime Minister to declare any area in Malaysia as a “security area” if the NSC is of the view that the security in that area is “seriously disturbed or threatened by any person, matter or thing which causes or is likely to cause serious harm to the people, or serious harm to the territories, economy, national key infrastructure of Malaysia or any other interest in Malaysia, and requires immediate national response” (see Clause 18(1)). This provision gives the NSC a broad discretion, predicated on wide and vague grounds, to advise that an area be declared as a “security area”. Thus, Clause 18(1) undoubtedly allows for the exercise of emergency powers that only the Yang di-Pertuan Agong may exercise under Article 150, and is therefore a provision that is unconstitutional;

(k) The declaration by the Prime Minister in Clause 18(1) is for an initial period of six months and “may be renewed by the Prime Minister from time to time for such period, not exceeding six months at a time” (see Clauses 18(3) and 18(4)). Thus, the Prime Minister may extend the period of the declaration for an unlimited number of times, and therefore for an indeterminate duration of years. There is provision for the declaration to be “laid before Parliament” but this is in the nature of notification to Parliament and not for the purposes of debate and ex post facto sanction by Parliament (see Clause 18(6));

(l) Upon a declaration of an area as a “security area”, the NSC would have wide-ranging executive powers. It may issue executive orders that would include the deployment of security forces (such as the police and the armed forces) in the security area (see Clause 19(2)), and may appoint a Director of Operations who is answerable only to the NSC (see Clause 20). The Bill does not provide for the qualifications of the Director of Operations, who is to have enormous and unrestricted powers, such as the power to remove any person from the security area, impose curfew, and control movement of persons or vehicles (see Clauses 22(2), 23 and 24);

(m) As regards the deployed security forces, they “may, without warrant, arrest any person found committing, alleged to have committed or reasonably suspected of having committed any offence under any written laws in the security area”. The security forces also have powers to stop and search individuals; enter and search any premises; and take possession of any land, building or movable property (such as cars) in a security area (see Clauses 25 to 30). All constitutional guarantees and fundamental rights of citizens in respect of arrest, search and seizure of property can be ignored or suspended for infringing “any written laws in the security area”. This is a grave violation of the Federal Constitution;

(n) The Bill allows for the creation of a security area where the military may be deployed by the NSC for the purpose of an internal security operation other than armed conflict. Here, the Bill places the command of the military under a civil agency, which is unusual. Further, the law of armed conflict dictates that unless the threat is a “real threat” and “not a perceived threat”, and that it is an act of war between nations, the threat falls within the jurisdiction of the police or any other government agencies, and not under the military;

(o) The Bill also appears to violate the Rules of Engagement (Rules of Confirmation) of the military, by allowing for any member of the security forces to use “reasonable and necessary” force (see Clause 34); and

(p) Finally, there is power to dispense with inquests in respect of members of the security forces and persons killed within the security area, as long as a Magistrate “is satisfied that the person has been killed in the security area as a result of operations undertaken by the [s]ecurity [f]orces for the purpose of enforcing any written laws” (see Clause 35). “Written laws” are not defined, and could well include laws in respect of minor offences. Thus, this provision permits security forces to use disproportionate force that could result in the loss of lives, with impunity;

5. We consider the Bill to be a serious threat to our system of constitutional government. It is apparent that the Bill vests and concentrates enormous executive and emergency powers in the NSC and the Prime Minister. This upsets the delicate separation of powers in the Constitution between the Executive, Legislature and Judiciary on the one hand, and the constitutional monarchy on the other hand.

6. It would appear that the powers are in effect emergency powers, but without the need for a proclamation of an emergency under Article 150. This usurps the powers vested in the Yang di-Pertuan Agong, and effectively resurrects the powers granted to the Government under the Emergency Ordinances, which were repealed by Parliament in 2011.

7. We are aware of the constant refrain that new powers, such as found in the Bill, are necessary to combat the threat of terrorism. However, we would remind the Government that it has more than enough laws giving it powers to address security concerns. The Bill extends those powers even further, allowing the Government to restrict movement, abandon civil liberties, and administer areas centrally and directly, bypassing state and local government. It avoids public scrutiny and proper accountability, and promotes unfettered discretion and an environment of impunity.

8. The Malaysian Bar, the Advocates’ Association of Sarawak and the Sabah Law Association urge the Government to seriously reconsider the Bill and not bring it into force, and to engage with all concerned parties on the proper role and function of the NSC. There are fundamental concerns and consequences associated with the NSC Bill that require careful discussion by, and input from all stakeholders involved. The Government should take a step back to properly address these concerns for the sake of the nation.

In an unprecedented move last Thursday, the government had tabled a motion to suspend its business in the Dewan Rakyat in order to fast-track a Private Member’s Bill brought forth by PAS president Abdul Hadi Awang (MP for Marang). The motion to prioritise the Syariah Courts (Criminal Jurisdiction) (Amendment) Bill 2016 (‘Hadi’s Bill’) was moved by the Minister in the Prime Minister’s Department, Azalina Othman.

The prime minister in a press statement had denied that Hadi’s Bill was meant to implement Islamic criminal laws, that is to say, hudud. He was reported to have said: “I would like to clarify to our friends in BN that there was a misunderstanding…I would like to state that it is not for the implementation of hudud. It is just to give Syariah Courts enhanced punishments. From six-strokes of the cane, to more depending on the offences.” (Malay Mail Online 27 May, 2016)

We, members of G25, are not convinced by Najib’s assertion in his press interview on Friday that the Syariah Courts (Criminal Jurisdiction) (Amendment) Bill 2016, is not about implementing hudud.

Whilst we appreciate that the Bill specifically states that the imposition of the death penalty by the Syariah Court is not permitted, the Bill, however, significantly and in a general manner, permits the imposition of other forms of punishment. Thus, it is open to the contention that, by implication, the Bill permits the state legislatures to empower the Syariah Court to impose any form of hudud punishment other than the death penalty (for example, 100 lashes of whipping for an unmarried person guilty of adultery; or the amputation of hands for theft).

In order to understand its underlying purpose, Hadi’s Bill cannot be looked at in isolation. It is a known fact that PAS and the state of Kelantan are keen to implement hudud and, indeed, the state Legislative Assembly of Kelantan had in 2015 passed the Syariah Criminal Code II (1993) Bill 2015. This state of Kelantan Bill of 2015 prescribes hudud punishments for offences like adultery, theft, robbery, sodomy, consumption of liquor and apostasy. However, the Syariah Courts (Criminal Jurisdiction) Act 1995, does not permit the Syariah Court to impose hudud punishments; and, hence, this federal law has been an impediment to the state of Kelantan in making the Kelantan Hudud Bill of 2015 a valid state enactment. Therefore, there is the need for the state of Kelantan to seek Parliament to amend the Syariah Courts (Criminal Jurisdiction) Act 1995. And, so, here comes Hadi’s Bill.A giveaway
It is a giveaway when Deputy Prime Minister Ahmad Zahid Hamidi, said that Hadi’s Bill was not to make new laws but to confer on the Syariah Court the powers to implement hudud in Kelantan. (Nation, Thursday 26 May 2016 ‘Zahid: Hudud Bill will only apply to Muslims in Kelantan’)

Our belief that Hadi’s Bill has everything to do with the Kelantan Hudud Bill of 2015 is further reinforced by the news report that the Kelantan Menteri Besar, Ahmad Yakob, had urged all Muslims MPs to support Hadi’s Bill should it be debated in the next parliamentary meeting (Hadi had successfully requested Parliament to defer the debate on his Motion to October 2016). (See Malay Mail Online Report of May 27, 2016 ‘Kelantan MB wants Muslim MPs to back hudud Bill’.)

We, in G25, categorically oppose Hadi’s Bill and the Kelantan Hudud Bill of 2015. Although Article 3 of the Federal Constitution declares that Islam is the religion of the federation, still, constitutionally, Malaysia is a secular state, as our forefathers and the framers of the Federal Constitution had intended. Further, our nation is a multi-religious, multi-racial and multi-cultural. As such, hudud is inappropriate and unacceptable to the vast majority of the Malaysian society. Moreover, a law such as the Kelantan Hudud Bill of 2015 is unconstitutional by reason of Article 8 (the equality before the law) of the Federal Constitution; as Muslims in Kelantan will be subjected to two sets of laws: the hudud and the Penal Code.Far-reaching implications
There is also the fear that if Hadi’s Bill were to be passed by Parliament, it will open the door to all other states to introduce hudud and the more severe forms of punishments. The Bill, therefore, has long-term and far-reaching implications.

We urge the state government of Kelantan to focus on improving the lives of the people of Kelantan, the poorest state in peninsula Malaysia with the highest incidence of social ills, rather than being obsessed with hudud. Surely, the state government of Kelantan needs no reminding that the Holy Prophet Muhammad (SAW) and the pious caliphs who succeeded him had always emphasised the people’s welfare instead of a punitive approach to governing.

We, in G25, take the view that the government has a fiducial and moral duty towards the citizens to build a happy and prosperous Malaysia. What is more important to the life of the people and their happiness is how well the country is governed to create an environment of peace and stability, with all citizens feeling secure about the future. Good governance, honest and responsible leadership, and a caring attitude by social and political leaders for the problems of the poor and the disadvantaged should be given high priority as they are essential for the economic and social progress of the country. Our leaders should focus their attention on these responsibilities in governing the country, instead of playing dangerous politics with hudud.

We, therefore, urge all Malaysians to reject this Bill so that racial and religious harmony can be maintained and the country can progress to achieve our vision for a united, moderate and happy Malaysia.

G25 Secretariat
Tuesday 31 May 2016
G25 is a group of retired Malay top senior civil servants.

Filed under: Islamization, Legal Issues, Press Statements, Religious Liberty, Shariah]]>Quest Covenant Community.jpfnkwMCCBCHST: WE REJECT THE PRIVATE MEMBERS BILL ON HUDUDhttps://libertysentinel.wordpress.com/2016/06/01/mccbchst-we-reject-the-private-members-bill-on-hudud/
https://libertysentinel.wordpress.com/2016/06/01/mccbchst-we-reject-the-private-members-bill-on-hudud/#commentsWed, 01 Jun 2016 05:31:20 +0000http://libertysentinel.wordpress.com/?p=1090]]>Henceforth, the new Hudud Bill or the “Syariah Courts (Criminal Jurisdiction) (Amendment) Bill 2016” that is tabled in Parliament should be called UMNO-PAS Hudud Bill. After all, without special assistance from UMNO, the Bill that was tabled by PAS (Hadi) would not get a chance to be debated in Parliament. If passed, the Bill will place the Federal Constitution on a slippery slide leading to a Shariah dominated Constitution. Malaysia will go the way of Pakistan where religious minorities (Christians) are often subject to false accusations and punishment under the Islamic Blasphemy Law. Nearer home, we should be alarmed at the prospect of non-Muslims being caned for ‘violating’ Islamic offences: Re: “Woman, 60, Caned for Selling Alcohol in Aceh” StraitsTimes (14 April 2016); See Also “For First Time in Indonesia, non-Muslim Caned under Islamic law” LosAngelesTimes (16 April 2016).

Undoubtedly, the Prime Minister and other UMNO-PAS assure non-Muslims that the Hudud law will not affect them. However, non-Muslims are justified to be alarmed given the troubling track record of the authorities imposing Islamic policies on non-Muslims. Jeyakumar Deveraj, PSM MP from Sungei Siput asks rhetorically, “Aren’t the following valid reasons for the apprehension of non-Muslims?”

The ‘Kalimah Allah’ issue which in fact restricts the way that other religions practice their religion in the privacy of their places of worship.

Unilateral conversions e.g. the case of Indira Gandhi.

The handling by the syariah court of divorce and custodial matters of a couple married in the civil system, after the conversion of one of the spouses into Islam.

The difficulties faced by people registered as Muslims but brought up as Hindus or Buddhists since childhood. They have great difficulty getting permission from the syariah system to drop “Islam” from their personal documents.

Imposition of over-strict dress codes for visitors to government institutions.

Would you not agree that the inability (or reluctance) of the syariah authorities, the government and the Islamic party to come to a fair resolution of these issues in a timely manner is another factor that adds to the apprehension?

In the face of this present danger, Non-Muslims (especially East Malaysians) must go beyond adopting a posture of resignation and quiet skepticism toward the hollow assurance from the Prime Minister. They must call upon their Members of Parliament and insist that their MPs vote against the UMNO-PAS Hudud Bill.

The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) categorically rejects the private members bill relating to the imposition of HUDUD Law in Kelantan. It is unconstitutional, tearing at the core of the Federal Constitution and going against the social contract embodied in the ALLIANCE MEMORANDUM as submitted by LORD REID COMMISSION’S REPORT and the WHITE PAPER which led to Independence. It also goes against the Cobbold Commission Report and the guarantees given to Sabah and Sarawak. It has the potential to undermine religious freedom and fundamental liberties as enshrined in Part II of the Constitution. The NonMuslim’s position too would be in jeopardy under Hudud and they would not have equal rights if implemented.
MCCBCHST was aghast at news of the Prime Minister’s Department being complicit in the tabling of the Bill as The Minister in the Prime Minister’s Department Datuk Sri Azalina Othman Said had moved a motion for the Hudud Bill to be read immediately during the debate then in progress in the House. This item was then positioned at No.15 on the Dewan Rakyat Order Paper. This raises the question as to how far Putrajaya is involved in the PAS move to table the HUDUD Bill then. Ir will directly impact on its other moves to bring about Harmony and Unity in the Country under the Jawatankuasa mempromosikan Persefahaman Dan Keharmonian Antara Penganut Agama (JKMPKA) which was set up for this purpose.
It is also worth noting that such an important Bill was not even discussed even among Barisan Natuonal’s component members and many were caught by surprise by the introduction of the Bill.
The Hudud Bill is unconstitutional because it seeks to include criminal offences which are at the moment under the Federal list and already offences under the Federal Penal Code. The Federal list comes under Parliament and States cannot legislate on it. At the moment States are only allowed to legislate on criminal offences as stated in the state list Schedule 9. The Hudud offences of theft, rape, murder and incest are already criminal offences under the Federal list and the proposed Bill is seeking to amend the Syariah Courts Criminal Jurisdiction Act 1965 to allow for enhanced punishments. They thus encroach into the Federal list and seek to create a dual criminal system, which is not allowed by the constitution.
Our first 5 Prime Ministers, beginning with Tunku Abdul Rahman until Tun Abdullah Ahmad Badawi, had objected to Hudud Law and Islamic Law being introduced into The Constitution. Our former Prime Minister Tun Dr. Mahathir Mohamad had warned the PAS government of Kelantan in 1994 against introducing Hudud Law in the State because ‘Hudud Law punishes victims while actual criminals were often left off with minimum punishment”. Tun Abdullah Badawi had promoted “Islam Hadhari” which was inclusive of all religions. But we now see the present leadership in Putrajaya being amenable to introduction of Hudud Law and ignoring the advice of the first 5 Prime Ministers and the HISTORY leading to Independence.
MCCBCHST hopes that the Putrajaya leadership will take heed of the various views expressed and would defend the Constitution and pull back support for the Hudud Bill. The hudud countries at the moment are no examples to follow and according to our former
Prime Minister Tun Dr. Mahathir Mohamad they are all failed and unstable states. We must cherish the unity we have now and not embark on political adventure which can rock and undermine our unity.
DATED: 30 May 2016

Our journey towards a fairer, better governed and harmonious society hit another roadblock on Thursday, May 15, 2016 with the reading of Marang MP Abdul Hadi Awang’s Private Member’s Bill in Parliament. I believe it is a problem that we can navigate without worsening the divisions in our society, but only if we take the effort to understand the issue properly and address it smartly and dispassionately.

I am by no means an expert on syariah law, but have had to read up on it so as to engage with Muslim colleagues in Parliament. I would like to share my understanding.

A. Hadi’s Private Member’s Bill

The Malaysian Parliament allows ordinary members of parliament to introduce bills to the Parliament. The member desiring to do so has to first submit a notice to the speaker stating that he/she wishes to move a motion introducing this bill [1]. Most often the speaker spikes the initiative at this stage by not allowing it on to the “order paper” of the House.

In my past eight years in Parliament I have not seen any Private Member’s Bill listed in the order paper. I have myself submitted five and none have survived this first stage.

Once the motion pertaining to the bill is put on the agenda (order paper) the next hurdle is that government matters take precedence over the tabling of the Private Member’s Bill. So only when all government matter for the day is finished [2] can the Private Member’s Bill be formally tabled by reading the motion pertaining to it (as Hadi did on Thursday). In other words, the government has to cooperate on this. For if the government keeps adding other bills to the agenda the Private Member’s Bill will never make it to the floor.

Once the motion presenting the Private Member’s Bill is read in Parliament, a vote has to be taken, and this without any debate on the subject matter of the bill. If a simple majority of the House votes for the motion introducing the bill, the Private Member’s Bill is deemed to have been read for the first reading, and it will be referred to the minister in charge of that issue to look into it and come up with a report [3]. Only when the minister in charge comes back with a report can the Private Member’s Bill go for the “second reading” which involves debate of its provisions.

What happened on Thursday May 25 was that Azalina Othman, the minister in charge of parliamentary affairs, stood down government matters and proposed that Hadi’s motion pertaining to the Private Member’s Bill which had suddenly appeared as no. 15 of the order paper that morning, vaulted over the other 14 motions listed before it, to be read by Hadi.

After reading it, Hadi requested that the vote on it be deferred to another session of Parliament.

B. What does Hadi’s bill actually say?

This Private member’s bill is brief and has only 2 points which are reproduced in full below:

1. The Syariah Court (Criminal Jurisdiction) Act 1965 is amended in section 2 by substituting section 2 with the following – “The Syariah Courts shall have jurisdiction over persons professing the religion of Islam in respect of any offences relating to any matter enumerated in item 1 of the state list of the ninth schedule of the federal constitution”.

2. A new subsection is inserted:

“Section 2A. In exercising the criminal jurisdiction under section 2, the Syariah Court may pass any sentence allowed by Islamic Law in respect of the offences mentioned in section 2 other than the sentence of death” [4].

C. What does this mean?

Section 2 means that the syariah punishment of amputating a hand for theft is not permissible under this bill because punishment of criminal acts is on the Federal List, and several categories of theft are already listed in the Penal Code. So because theft is not under the state list, it cannot be tried and punished in the syariah court. this also means that robbery, also one of the 5 hudud offences, cannot be tried in the syariah court – for the same reason.

So only actions termed as offences under Islamic Law but which are not listed in the Penal Code can be tried in the syariah court. Of the 5 hudud offences, 3 are not listed in the Penal Code. They are – zina (sex involving a couple who aren’t married to each other), alcohol consumption (syurb) and apostasy (irtidad).

Section 2A enhances the powers of the Syariah Court to mete punishment. Under the current system there is a 3-5-6 maximum. The maximum length of a jail sentence that the syariah court can order is 3 years; the maximum fine is RM5,000; and the maximum number of lashes is 6. However with Hadi’s bill, these limits are removed, and the 40 to 80 lashes for alcohol consumption as specified in the Kelantan Hudud Enactment [5] can be prescribed!

However the punishment for zina for persons who are married (to others) or have been married is, according to the Kelantan Syariah Criminal Code [6], death by stoning (rejam). However this is not within the power of the Syariah Court to order as the death sentence is not permitted under Section 2A. Similarly, the death sentence for apostasy [7] cannot be ordered by the syariah court.

D. What would be a principled response to this Private Member’s Bill?

How do we deal with this in a principled manner? Let me start by asking 2 sets of questions

1. Questions for Non-Muslims:

– Do non-Muslims have a right to object to the way in which Muslims choose to practice their religion?

– Can we tell Muslims how to practice their religion?

– Do we not believe that each religious community has the right to practice their religion freely?

– Don’t we recognise that the entire Islamic world is struggling to define what it means to be true to their faith as Muslims in the 21st Century? Do we expect Malaysian Muslims to be unaffected by the ongoing debate/battle?

2. Questions for Muslims:

– Why is it that non-Muslims are so apprehensive of any extension of the powers of the syariah court?

– Is their apprehension without any basis?

– Aren’t the following valid reasons for the apprehension of non-Muslims?

The ‘Kalimah Allah’ issue which in fact restricts the way that other religions practice their religion in the privacy of their places of worship.

Unilateral conversions e.g. the case of Indira Gandhi.

The handling by the syariah court of divorce and custodial matters of a couple married in the civil system, after the conversion of one of the spouses into Islam.

The difficulties faced by people registered as Muslims but brought up as Hindus or Buddhists since childhood. They have great difficulty getting permission from the syariah system to drop “Islam” from their personal documents.

Imposition of over-strict dress codes for visitors to government institutions.

– Would you not agree that the inability (or reluctance) of the syariah authorities, the government and the Islamic party to come to a fair resolution of these issues in a timely manner is another factor that adds to the apprehension?

I would argue that a principled position can only develop if we take the effort to put ourselves in the shoes of the other party and try to understand where they are coming from.

a. Muslims should make serious efforts to push authorities to re-define certain laws so that the (probably unintended) adverse impact on non-Muslims is handled. To do this Muslims should be sensitive to the issues mentioned above. They have to engage sympathetically with those individuals affected most adversely. And they should welcome input from non-Muslim NGOs and individuals dealing with these issues.

b. Non-Muslims should accept the principle that each community has the right to practice their religion in the way they see fit. It would not cause any harm for non-Muslims to learn a bit more about Islam. That would help them understand where their Muslim friends are coming from.

c. We should not be afraid to discuss religious issues, but should take extra care to be respectful to the beliefs of others. This implies a certain acceptance of diversity.

d. Muslims must accept the fact non-Muslims need clarifications regarding the Syariah Court Criminal Jurisdiction Act as well as the Kelantan Syariah Criminal Code 2015. They need to be reassured that these new changes will not affect them adversely in any way, and if there are any unintended unforeseen negative consequences, these will be dealt with expeditiously.

e. We should not allow our politicians to sensationalise these issues in an attempt to show that they are the true defenders of their faith. MCA vs DAP and Umno vs PAS!

E. What about Muslims who have objections to DS Hadi’s definition of Islam?

In the course of my discussion with Muslims, I have come across several whose views of Islam differ quite markedly from that of Hadi’s. Let me state a few of their arguments here.

1. There are some Muslims who argue that the hudud punishments represent the maximum punishment permissible, and not the mandatory. They argue that in the “Jahiliah” period, a poor person who stole from a rich family might have suffered even greater punishment, and that the cutting of a hand after all other mitigating factors had been looked for, represents a much more humane punishment given that historical circumstance.

2. There are some who question the death sentence for apostasy. They argue that in those times, when there was armed conflict between the new Islamic society and the old tribal society, those who left them often ended up helping the enemy attack them. So the death sentence was for treason and not for the loss in faith.

Some Muslims feel that the definition of the offence of irtidad in Section 23 (1) and (2) of the Kelantan Syariah Criminal Code is dangerously imprecise [8].

3. Then there are some who point out that the practice of “rejam” for adultery was the practice in that region for the 500 years or more before the time of the Prophet. It wasn’t something new brought by the Prophet. In the fact the extremely high standards of evidence introduced by the Prophet makes it nearly impossible to prove zina. These friends argue that in effect the Prophet was trying to stop the practice of rejam but without saying that openly.

Questions:

– If there are Muslims with a view that is at variance with that of PAS’, do these individuals have a right to voice their views?

– Should they voice their views?

– How should differences of opinion be handled by the Muslim community? Persuasion and by example, or in an authoritarian manner?

These are questions that our Muslim friends have to answer for themselves.

F. Is there an ‘udang di sebalik batu’ here?

Consider:

– The speaker agreed to include Hadi’s motion as item 15 of the order paper on Thursday.

– The minister in charge of parliamentary affairs took the unprecedented step of i) standing down government matters, and ii) promoting item 15 on the agenda to first place.

Neither of them would have acted of their own volition. I have no proof of course, but it seems to me that something as big as this has to come from their number one!

But why?

– Why bolster PAS just prior to by-elections that the PM has to win big to put an end to the Mahathir insurgency?

Could it be that:

– Najib is already quite sure of winning handsomely as he has reliable information that PAS and Amanah are going to three-corner both seats.

– Najib is already setting his sights on winning big in GE14. The purpose of this exercise is to drive a wedge between the Muslims and the non-Muslims in Pakatan Harapan. This, I believe, is the “udang” (ulterior motive).

– Timing it just before the by-elections is to ensure maximum embarrassment. DAP might feel that it has to show its supporters that the DAP is the better “defender” of the “secular constitution” compared to MCA. Amanah cannot afford to say that they are against enhancement of the powers of the syariah courts. Of course, loose language by some leaders or even members of these two parties will aggravate the situation, and with a bit of luck for the BN, result in a public spat between the Harapan parties.

Insertion of Hadi’s motion in the order paper in April 2015 was one of the causes of the breakup of Pakatan Rakyat. Someone is obviously hoping that getting Hadi to read it would do the same to the Harapan.

One way of handling this new situation is for the Harapan to give these by-elections a miss. Let PAS take on Umno. This is so Harapan gets some time to handle this new complication away from the spotlight of an election campaign with the press and members of the public asking difficult questions.

As for handling of the issue, I believe the only way is to take a principled approach as I have outlined above and take that first to our own support base to see if we can get a buy-in from them. It might not be so easy because both coalitions – the BN and opposition – have been grandstanding on this issue – taking diametrically opposite stands depending on the ethnicity of the audience. But I think it can be done, and civil society groups also have a part to play. It cannot be swept under the carpet any more. Our PM has put it on the national agenda and we have to deal with it. We have to trust in the maturity of our people. After all they were smart enough to vote for us in 2008 and 2013.

Race and religion has been used time and again to divide the people so that the elite can stay in power. The British did it to put down the radical nationalists. Our own leaders have kept doing the same. How much longer are we going to fall for the same ploy? That answer is in our hands.

Notes.

1. Section 49 (2) standing orders of the dewan rakyat.

2. Section 15 (1) standing orders of the dewan rakyat.

3. Section 49 (4) standing orders of the dewan rakyat.

4. The words “other than the sentence of death” were not there in the bill that was submitted by Hadi in April 2015.

5. Clause 22 of the Kelantan Syariah Criminal Code 2015.

6. Clause 13(1) of the Kelantan Syariah Criminal Code 2015

7. Clause 23 (4) of the Kelantan Syariah Criminal Code 2015

8. Section 23 of the Kelantan Syariah Criminal Code 2015

(1) Whoever voluntarily and deliberately does an act or utters a word that affects or is against the faith in Islamic religion is committing irtidad.

(2) Subsection (1) refers to any word or act concerning the fundamental aspects which are deemed to be known to all Muslims as part of his general knowledge for being Muslim, such as matters pertaining to Rukun Islam, Rukun Imam and matters of halal and haram.

KUALA LUMPUR, June 1 ― Muslims have no obligation to support hudud as the Islamic criminal code is not mentioned in the Quran, a Sudan-born law professor said today amid debate over a proposed Bill in Parliament that has divided Malaysians along religious lines.

Professor Dr Abdullahi A. An-Naim from Emory University based in Georgia, the US, who professed to be a Muslim said a secular country would protect freedom of belief, including among Muslims.

“The term ‘hudud’ itself is a misnomer,” An-Naim told a press conference organised by pro-moderation group G25 here.

“The Quran doesn’t mention the term ‘hudud’. It’s not in the Sunnah,” he added, referring to the verbal record of Prophet Muhammad’s teachings and practices.

An-Naim labelled the purported obligation for Muslims to support hudud law as “personal speculation” and said: “Give me a Quranic text that gives this obligation”.

The private member’s Bill seeks to empower Shariah courts to enforce punishments ― except for the death penalty ― provided in Shariah laws for Islamic offences listed under state jurisdiction in the Federal Constitution.

However Hadi’s Bill provided no details on the nature of the punishments.

Shariah court punishments are currently limited to jail terms not exceeding three years, or whipping of not more than six strokes, or fines of not more than RM5,000.

Local daily Berita Harian reported recently Shariah adviser to the Attorney-General’s Chambers Tan Sri Sheikh Ghazali Abdul Rahman as claiming that it is compulsory for Muslims to support the proposed amendments to the Shariah Courts (Criminal Jurisdiction) Act.

An-Naim said today that a secular state was not a Western objective but about protecting freedom of belief given the “wide variety” of Muslims.

The scholar of Islam and human rights pointed out that the Shiites in Sudan are forced to live under Wahhabism, an austere branch of Sunni Islam, which they consider heresy, while Iran enforces the Shiite doctrine that must be followed by Sunni Muslims.

“Separating the state from religion is necessary for Muslims to believe with conviction and honesty,” said An-Naim.

Local hudud proponents claim that Malaysia is an “Islamic” country. Malaysia, which practises Sunni Islam, labels other denominations like Shiism as deviant.

An-Naim said the term “Islamic state” does not appear in the Quran and was not practised in the history of Islamic civilisation until the 20th century, noting that the idea of a separate state for Muslims only emerged in the 1930s for a state in colonial India to break away as Pakistan.

An-Naim, who wrote a book on Islam and the secular state, said the government should enforce a single law on all citizens equally.

He described the dual legal system in Malaysia, in which Muslims can be punished for “personal sins” like “khalwat” (close proximity), as confusing.

“A crime should not be made a crime just because it’s a sin to some people,” he said.